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In re K.M.J.

Court of Appeals of Texas, Fourth District, San Antonio

April 3, 2019

IN THE INTEREST OF K.M.J. IN THE INTEREST OF A.N.J.

          From the 288th Judicial District Court, Bexar County, Texas Trial Court Nos. 2017-PA-02187, No. 2017-PA-02188 Honorable Martha Tanner, Judge Presiding [1]

          Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice, Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          LIZA A. RODRIGUEZ, JUSTICE

         Appellant Father A.J. appeals the trial court's orders terminating his parental rights to his ten-year-old daughter, K.M.J., and three-year-old daughter, A.N.J.[2] We hold that the evidence is factually insufficient to prove termination of Father's parental rights is in the best interests of the children and reverse the portions of the trial court's orders terminating his parental rights and remand the causes for further proceedings. Because Father does not challenge the trial court's conservatorship findings on appeal, we affirm the trial court's orders of termination in all other respects, including the portions of the orders appointing the Department of Family and Protective Services as sole managing conservator of the children.

         Background

         The Department presented only one witness at the termination hearing on September 25, 2018. Jason Logsdon, the Department caseworker assigned to both cases, testified that the initial allegations which caused the Department to become involved were "drug use and/or drug dealing." Specifically, Logsdon stated that K.M.J. "made an outcry of finding a baggy of what was thought to be drugs" and a third child not involved in the case was found "with a rock in their hand, and it was believed to be a drug." However, he conceded that no testing was conducted to confirm that either item "thought" or "believed" to be a drug was in fact an illegal drug. No evidence was presented regarding the physical characteristics or type of drug(s) suspected or identifying who initially thought the items were illegal drugs and the basis for their belief. Additionally, Logsdon stated that Father and D.R., the mother of K.M.J., submitted to drug tests during the Department's investigation and the results were "concerning." Logsdon did not elaborate beyond that vague statement and did not specify which person's drug tests were "concerning," or whether the concern extended to both tests. No evidence was presented to show that the drug tests were in fact positive for drugs, or to explain what exactly gave rise to the "concern." Logsdon testified that removal of the children on September 28, 2017 was based on these allegations.[3]

         Logsdon also testified that, prior to removal, the case was assigned to Family Based Services but "there were concerns that the parents were not working services." Again, Logsdon did not specify which of the three parents that concern extended to and what services the parent(s) failed to do. He did not provide any evidence of the services that were being provided to the parents or of the actions taken by the Department to ensure the children remained in the home with their parents.

         Once Logsdon received the case after removal, he established a family service plan for the parents outlining the necessary steps to be taken to achieve reunification with the children. Father's plan required him to (1) undergo a drug and alcohol assessment, (2) submit to random drug testing, (3) participate in individual counseling, (4) participate in a parenting class, (5) participate in couples therapy with K.G., (6) undergo a psychological evaluation, (7) resolve any criminal charges, (8) maintain stable employment, (9) maintain stable housing, and (10) participate in visits with his daughters K.M.J. and A.N.J.

         Father completed the drug and alcohol assessment and engaged in drug treatment, although there was some dispute as to when he began the drug treatment program "in earnest." Logsdon stated that, on the morning of trial, he confirmed the status of Father's current attendance at outpatient drug treatment at Elite Treatment Center, but he did not inquire which stages of the program Father had completed. Logsdon acknowledged that, based on the information provided to him, Father was attending treatment and was in compliance with the drug treatment.

         On direct examination, Logsdon testified that Father submitted to a urinalysis in April 2018 which was negative, but failed to submit to urinalysis tests on at least seven other occasions, including failing to submit to a hair follicle exam in April, May and June. On cross-examination, Logsdon added that he was aware of one random drug test given to Father during the Elite Treatment program; he did not state whether the test was positive or negative. In addition, Logsdon stated that Father was voluntarily attending Narcotics Anonymous classes on his own, outside the requirements of the service plan, and had provided Logsdon with copies of the sign-in sheets.

         Father completed the psychological assessment. He attended individual therapy but was discharged for noncompliance in June 2018. Logsdon initially stated he did not recall whether Father asked him for a referral to a different therapist after the discharge, and agreed that a parent cannot be faulted for not completing a service if it was not set up by the Department. On re-direct, however, Logsdon changed his answer to reflect that he did in fact refer Father to a new therapist based on Father's request. One of the results of Father's psychological evaluation was a recommendation that Father have a psychiatric examination and a neurological examination. Logsdon testified that, although it was recommended, he did not refer Father to a doctor for the neurological exam because "that's a medical exam" and he did not know how to go about setting up a medical examination and did not think it was his responsibility to set up that type of service. Logsdon expressed his belief that Father could just get a referral from his primary physician; however, he did not know whether Father had health insurance or the cost of a neurological evaluation. Logsdon stated he did refer Father to the Center for Healthcare Services for the recommended psychiatric exam.

         Father successfully completed the parenting class. As part of the service plan, Father was also ordered to participate in couples' therapy with K.G., the mother of A.N.J., but he did not complete that service. Logsdon stated he believed that Father and K.G. were still in a relationship because they shared a cell phone and showed up to services together. Logsdon also testified that he did not know any details about the nature of the relationship between Father and K.G. during the case and it was "not clear" whether they were a couple; he agreed that couples' therapy was not needed if Father and K.G. were not currently in that type of relationship. K.G. testified[4] that they have an "open relationship" in which they each do what they want. K.G. acknowledged that Father provides her with shelter and helps her so they can continue being "Mom and Dad" to their daughter A.N.J. K.G. also testified that she asked Logsdon to refer her to a separate therapist because she did not want her private information shared with Father by the joint therapist; she stated Logsdon made the referral for her to have her own therapist.

         Father provided proof of employment. Logsdon testified that Father provided an employment letter on his employer's letterhead but conceded he never called the employer to verify Father's employment. Logsdon stated that Father complied with that requirement of his service plan. In addition, Father had stable housing and Logsdon assessed the inside of the two-bedroom home and had "no major concerns." Father lived in the same house during the entire pendency of the case.

         Father attended twenty-five visits with the children. He missed five visits and was late to other visits due to car trouble. Logsdon observed visits between Father and the children and found "no major issues" during the visits. Logsdon acknowledged the visits were appropriate and agreed "the Department has never expressed any concerns about those visits." Logsdon did not specify how many visits he observed. Father has maintained consistent contact with the Department during the case.

         Logsdon testified that Father did not have any pending criminal charges against him that needed to be resolved under the service plan. However, when asked whether there were any new allegations made during the pendency of the case, Logsdon stated that "K.M.J. made an outcry of sexual abuse against [Father]" one month before the trial. According to Logsdon, when K.M.J. was interviewed at Child Safe, however, she "didn't say anything." Logsdon testified that he checked the status of the Department's investigation on the morning of trial and the Department's records showed it was still open. When asked whether he was aware that the Department's investigator had closed the case on the preceding Friday, Logsdon stated he was not aware of the investigation being closed or ruled-out. Logsdon testified that K.M.J had been attending the visits with Father, but after the outcry she "no longer wanted to visit" with Father. The record is not clear as to the source of this information concerning K.M.J.'s desires. The record is not clear whether Logsdon ever spoke to K.M.J. about her allegation; he did not state that he discussed it with her. Logsdon did testify he did not talk to Father about K.M.J.'s allegation and did not review K.M.J.'s interview at Child Safe. Logsdon conceded that the Department stopped bringing K.M.J. to visits with Father after her outcry despite a court ruling that K.M.J. "didn't get to opt out of a visit" with Father on her own.

         Finally, Father presented the testimony of his adult son who stated that he has been to Father's home many times and it is a safe environment; he has never seen Father using or selling drugs; Father takes good care of K.M.J. and A.N.J. and "loves them a lot;" and he has not seen anything negative in their interactions. The son also testified that Father was not currently in a relationship, but had previously been in a relationship with K.G. The son only recently found out that K.M.J. and A.N.J. had been removed from Father's home by the Department and had been placed with his aunt.

         At the conclusion of the hearing, the trial court found that Father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of his children who had been in the Department's temporary or permanent managing conservatorship for not less than nine months as a result of their removal under Chapter 262. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). The trial court further found that termination of Father's parental rights to K.M.J. and A.N.J. was in the children's best interests. Id. § 161.001(b)(2). Father appealed.

         On appeal, Father does not challenge the trial court's finding that he failed to comply with the family service plan in each case. See id. § 161.001(b)(1)(O). Father's sole issue on appeal is that the evidence is legally and factually insufficient to support the trial court's findings that termination of his parental rights is in each child's best interest. See id. § 161.001(b)(2).

         Standard ...


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